HKSAR v. MOHAMMED ABDUL JALIL

DCCC 898/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 898 OF 2015

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HKSAR
v
MOHAMMED Abdul Jalil

____________

Before : H.H. Judge G. Lam

Hearing Dates : 11, 12 and 15 February 2016
Date of Verdict : 1 March 2016

Present : Mr. Martyn Richmond, counsel on fiat, for HKSAR.
Mr. Robert Andrews instructed by M/s Jal N.Karbhari & Co., for the defendant.

Offences: (1) Wounding with intent(有意圖而傷人)
(2) Possession of offensive weapons in a public place(在公眾地方管有攻擊性武器)

REASONS FOR VERDICT

1. The defendant faces 1 charge of “Wounding with intent” (Charge 1) and 1 charge of “Possession of offensive weapons in a public place”(Charge 2). He pleaded not guilty to both charges.

The Prosecution Case

2. The prosecution called a total of 4 witnesses.

3. Mr. Biplob (PW1), Mr. Bakkar (PW2) and the defendant are fellow clansmen. PWs 1 and 2 are Form 8 holders (commonly known as “tortureclaimants”). They both stated that they had a good relationship with the defendant and treated him like a brother. They allegedthat this case arose from a dispute over a pair of missing sports shoes between PW1 and the defendant.

4. On 10 August 2015, the defendant and PW2 helped PW1 move into PW2’s flat situated at Fuk Wa Street in Sham Shui Po (“the Flat”). After settling in, PW1 found a pair of “Nike” sports shoes missing. He believed they were taken away by the defendant and demandedthe defendant to return them. There were arguments regarding this matter for a few days.

5. In the early hours on 16 August 2015, the defendant visited the Flat when PWs 1 and 2 were present. He returned a pair of sportsshoes to PW1, but PW1 stated that they were not the missing pair. They had a verbal dispute, which later turned into a physicalstruggle. PW2 ended up pushing the defendant out of the Flat. Later in the same evening, PWs 1 and 2 left the Flat and went downstairs. At the street, they saw the defendant running towards PW1 with a chopper in each hand. PWs 1 and 2 each gave a different versionas to what happened. I will deal with the salient features in due course; suffice it to say now that PW1’s left elbow and rightindex finger were cut[1].

6. The defendant fled after PW1 was injured. PWs 1 and 2 chased after him. In the course of the pursuit, PC 9914 (PW3), who was patrollingin the area, was alerted. He gave evidence that he saw a non-Chinese male with dark skin colour running towards him holding a chopper-likeobject in each hand. PW3 tried to intercept and stop the male but without success. He saw the male entering the building situatedat Nos.33-35 Fuk Wing Street (“the Building”).

7. SPC 34398 (PW4) soon arrived at the scene to render assistance. After being briefed by PW3 and PC 50501, PW4 went inside the Buildingto search for the suspect. He asked PW2 to go along with him for the purpose of identifying the suspect. After searching the Building,PW4 found the defendant (whose identity was confirmed by PW2 on the spot) inside a flat on the 1st Floor[2]. PW4 also found 2 choppers (Exhibits P1 and P2) on a shoe rack placed at the entrance of the flat[3]. PW4 tried to communicate with the defendant but was unable to do so.

The Defence Case

8. The defendant elected not to give evidence or call any defence witness. I drew no adverse inference against him in this regard.

Assessment and Analysis of Evidence

9. The burden of proof is on the prosecution to prove each element of each offence beyond reasonable doubt. The evidence against thedefendant came primarily from PWs 1 and 2. I have carefully considered their evidence and observed their demeanours in the witnessbox.

10. Regarding Charge 1, PWs 1 and 2 gave contradictory evidence in terms of how PW1’s left elbow was slashed[4]. I do not find PW1’s evidence credible or reliable. I will now explain why.

11. During cross-examination, PW1 admitted that he has accepted $3,000 from the defendant’s girlfriend to cover part of his treatmentexpenses. He claimed that he had spent about $10,000 in total on treatment of his injuries caused by the defendant. PW1 first statedthat he consulted a private doctor. When asked about the details, he alleged that he received injections from staff members of adispensary in Sham Shui Po.

12. As a juror, I do not accept $10,000 being a sum commensurate with the treatment of PW1’s injuries. Being a Form 8 holder, it isdoubtful that PW1 had the financial ability to spend such a substantial sum on treatment of his injuries. Receiving injections administeredby staff members of a dispensary is simply absurd. PW1 is not an honest or truthful witness. Unless corroborated by others, I rejecthis evidence (in particular how he sustained his injuries).

13. PW2’s evidence seems to be more objective and is somewhat favourable to the defendant (at least in relation to Charge 1). Accordingto PW2, when he and PW1 were at the street, he saw the defendant running towards PW1 with a chopper in each hand. PW2 told the defendantnot to fight; the defendant listened, turned around and started walking back. At that time, PW1 came from behind and hit the defendantwith a stick-like object. Then there was a struggle between PW1 and the defendant. PW1 tried to take the choppers away from thedefendant, but the defendant did not to let go. Suddenly, PW2 saw blood coming from PW1 and the defendant ran away. PW2 agreedthat he did not see how PW1 got cut nor did he see the defendant slashing PW1.

14. Based on PW2’s evidence, PW1’s injuries could have been accidental. In other words, there was a possibility that PW1’s injuriesmight not have been inflicted by the defendant (at least not intentionally). On this basis, I am not satisfied beyond reasonabledoubt that the defendant had committed the offence in Charge 1. I find him not guilty.

15. Regarding Charge 2, I accept PW2’s account of the events. In the heat of the struggle between PW1 and the defendant which tookplace inside the Flat, PW2 pushed the defendant out of his home. Later when PW2 and PW1 went downstairs to the street, PW2 saw thedefendant running towards PW1 with a chopper in each hand.

16. In my view, irrespective of how abusive the argument and struggle between PW1 and the defendant might have been inside the Flat,after being pushed out, the defendant went away, had ample time to cool off, and was not in any imminent danger (which could justifyhim carrying any weapons on the street in the slightest degree). Yet, he returned holding 1 chopper in each hand and ran towardsPW1. As a juror, I am sure that by returning to the vicinity of PW2’s home with 2 choppers, the defendant’s intention was to attackPW1 (which is the only reasonable inference to be drawn based on the accepted evidence). Clearly, he possessed the 2 choppers onthe street without lawful authority or reasonable excuse.

17. It matters not if the defendant was persuaded by PW2 to turn around[5]; or he was attacked by PW1, which might have given rise to the issue of self-defence. As explained in my analysis above, whenthe defendant appeared at the street holding 1 chopper in each hand, he had none but one intention – to attack PW1[6]. At that very moment, he committed the offence in Charge 2. The prosecution has proved the charge against the defendant beyondreasonable doubt. I find him guilty.

(G. Lam)
District Judge

[1] See Exhibits P4 and P5 (PW1’s medical reports).

[2] See Photos 3 and 4 in Exhibit P3 and the sketch drawn by PW4 in court (Exhibit P7) which marks the location at which the defendantwas found inside the flat.

[3] See Photos 1 and 2 in Exhibit P3.

[4] PW1 stated in his evidence that he did not realize that his right index finger was also bleeding until he was at the hospital. Heclaimed that he did not know how it was cut.

[5] i.e. abandoned the intention to attack PW1.

[6] A fact which I have found as a juror.